Delhi District Court
Amit Bharana vs State on 18 January, 2023
IN THE COURT OF ADITIONAL SESSIONS JUDGE-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. REVISION No. 95 of 2021
CNR No. DLST01-002664-2021
1. AMIT BHARANA
S/O LATE BRIJ SINGH BHARANA,
R/O : C-146, FIRST FLOOR,
SARVODAYA ENCLAVE, MALVIYA NAGAR,
NEW DELHI
2. MS. RASHMI BHARANA,
W/O SH. ANUVRAT VERMA,
D/O SH. HEM SINGH BHARANA,
R/O : H.NO.182, PRATAP ROAD, SUBHASH NAGAR
DEHRADUN, UTTARAKHAND-248002
3. MS. MANISHA BHARANA
W/O SH. SUMIT BANSAL,
D/O SH. HEM SINGH BHARANA
RO : B-154, SECTOR-15, NOIDA, UP
.......APPELLANTS
VERSUS
STATE
GOVT. OF NCT OF DELHI ....... RESPONDENT
DATE OF INSTITUTION : 08.03.2021
JUDGMENT RESERVED ON : 13.01.2023
DATE OF JUDGMENT : 18.01.2023
JUDGMENT
1. When a case U/s 138 NI Act was going on, some accused perons started absenting themselves from the proceedings and the said Ld. Trial Court was constrained to issue coercive process which escalated to issuance of process U/s 82 CrPC. Despite the same, the acused persons chosen not to appear before the said Ld. Trial Court and therefore, they were declared absconder. The said Ld. Trial Court issued a further direction to the concerned SHO for initiating proceedings U/s 174-A IPC. Consequent thereto, an FIR was registered on 08.05.2015 and police report was filed before the Ld.Magistrate on 15.05.2019. Further investigation Cr. Rev. No. 95/2021 Amit Bharana & Ors. vs. State Page 1 of 5 was also directed and subsequently, the accused persons appeared through video-conferencing in the Ld. Trial Court which was dealing with FIR cases. The Ld. Trial Court, on 05.02.2021, took cognizance of offences U/s 174A IPC. It is this order which has been challenged by the accused persons by filing two revision petitions bearing CR No.94/21 and CR No.95/21. Both these revision petitions shall be disposed of by this common Judgment.
2. Both the sides have been heard. Record perused.
3. Though some grounds have been mentioned in the revision petition, the Ld. Counsel for the revisionists confined his contentions to one point i.e. period of limitation. I have therefore, considered the case from the point of view of limitation.
4. The original criminal case was pertaining to Section 138 NI Act. If in such cases, the accused person is declared absconder, the resultant offence will fall within first part of Section 174A IPC which prescribes punishment extending to three years imprisonment. For better appreciation, the provision is reproduced as under :
"174A.Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.--
Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine".
5. Now, the period of limitation for taking cognizance is given in Section 468 CrPC which says that if an offence is Cr. Rev. No. 95/2021 Amit Bharana & Ors. vs. State Page 2 of 5 punishable up to three years, the period of limitation will be three years. This provision is reproduced as under :
"468. Bar to taking cognizance after lapse of the period of limitation.--(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be--
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment".
6. Clearly, if the case is filed after three years, the Court cannot take cognizance without condoning the delay in filing the case. In the present case, the FIR is dated 08.05.2015 whereas the police report was filed on 15.05.2019. This is clearly beyond the period of three years and therefore, the law of limitation might have an application in this case. However, other provisions related to the law of limitation is required to be seen. Section 470 CrPC talks about exclusion of time in certain cases. Sub-section (4) is relevant and therefore, the same is reproduced as under :
"470. Exclusion of time in certain cases.--(1) ............
(4) In computing the period of limitation, the time during which the offender--
(a) has been absent from India or from any territory outside India which is under the administration of the Central Government, or
(b) has avoided arrest by absconding or concealing himself, shall be excluded".Cr. Rev. No. 95/2021 Amit Bharana & Ors. vs. State Page 3 of 5
7. The aforesaid provision clearly says that if a person was avoiding his arrest by absconding or by concealing himself, the entire period of such activity should be excluded while counting limitation. In the present case, the entire offence originated on account of the fact that the accused persons were absconding and concealing themselves. Section 174A IPC is entirely based on the fact that the culprits were avoiding appearance and concealed themselves in the Court proceedings. Such type of offence itself will fall within the ambit of Section 470(4) CrPC. Therefore, the duration when the accused persons were concealing themselves or absconding has to be excluded while calculating three years limitation period. It is further relevant to note that the actual taking of cognizance by the Magistrate is not material but it is the date of filing of the case which is material to check the limitation for cognizance.
8. Further Section 472 CrPC talks about limitation for continuing offence. This provision reads as under :
"472. Continuing offence.--In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues".
9. It is clear that if there is a continuing offence, the limitation will begin at every moment. The offence punishable U/s 174A IPC is premised on the fact that accused persons chose not to appear before the Court on the fixed date(s) despite proclamation of process. Therefore, until the accused persons appear before the Court, the basis of the offence will remain. In my considered view, offence U/s 174A IPC should be treated as continuing offence and therefore, in terms of Section 472 CrPC, Cr. Rev. No. 95/2021 Amit Bharana & Ors. vs. State Page 4 of 5 limitation period will begin at every moment. This reason is in addition to the reasons given in earlier paragraphs which independently show that the case is within limitation.
10. In view of the above discussions, it is clear that the cognizance was taken within the limitation period and there is no illegality in the said order passed by the Ld. Trial Court. Before taking cognizance, the Ld. Trial Court is not required to see the probative value of the evidence or to check if there is chances of conviction or not. Ld. Trial Court is also not required to entertain any application of the accused for dropping of the proceedings at such stage. Only a prima facie view is required to be made for summoning the accused. The case before the Ld. Trial Court was clearly based on documentary evidence related to Court proceedings and therefore, there should not have been any reason for the Ld. Trial Court not to take cognizance against the accused persons.
11. In view of the above, the revision petitions filed by the revisionists/accused persons are clearly meritless. Consequently, the same are hereby dismissed.
12. Trial Court Record along with a copy of this Judgment be sent back.
13. The revision files be consigned to the Record Room after due compliance.
ANNOUNCED IN THE OPEN COURT TODAY ON THIS 18th DAY OF JANUARY, 2023 (RAKESH KUMAR SINGH) ADDITIONAL SESSIONS JUDGE (SOUTH) SAKET COURTS : NEW DELHI Cr. Rev. No. 95/2021 Amit Bharana & Ors. vs. State Page 5 of 5